Petition for Writ of Certiorari — Detsel ex rel. Detsel v. Board of Education

ea ERT Te

me Hw i or

OCT 13 we7

IN THE * JOSEPH F. SPANIOL, JR.

Supreme Court of the Wni

Ocroser TERM, 1987

MELISSA DETSEL, an infant by her mother and next friend,

MARY JO DETSEL,

Petitioner,

a

BOARD OF EDUCATION OF THE AUBURN

ENLARGED CITY SCHOOL DISTRICT, PETER

KACHRIS, individually and as Superintendent of the

Auburn Enlarged City School District, GORDON

AMBACH, Commissioner of the New York State

Education Department,

Respondents.

ws

PETITION FOR A

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

HERBERT SEMMEL

(Counsel of Record)

New YorkK LAWYERS FOR THE

PuBLIC INTEREST

135 East 15th Street

New York. New York 10003

(212) 777-7707

OF Comm: Attorneys for Petitioners

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM

919 Third Avenue

New York, New York 10022

(212) 735-3000

QUESTIONS PRESENTED

1. In an action under The Education of All Handicapped

Children Act and regulations promulgated thereunder, did the

Court of Appeals err in creating an ad hoc balancing test to

determine whether the services of a nurse, necessary for a child

to attend school, are “related services” and not exempt as

“medical services”, rather than applying the bright line test con-

tained in the regulations as applied by this Court which pro-

vide that handicapped children are entitled to receive such

services so long as they can be performed by a school nurse and

not by a physician?

2. Did the Court of Appeals err in holding that a school district

may properly refuse to provide school nursing services to a han-

dicapped child where the child will, contrary to the fundamental

purpose of the Act and decisions of this Court, be relegated to

instruction at home away from other children, and where the

cost of providing teachers and other services at the child’s home

as required by the Act will exceed the cost of providing nursing

services in school?

ii

PARTIES TO THE PROCEEDING

The caption of the case in this Court contains the names of

all parties to the proceeding.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............. |

PARTIES TO THE PROCEEDINC ..... ii

TABLE OF AUTHORITIES.......... : V

| l

Se 2

STATUTE AND REGULATIONS INVOLVED 2

STATEMENT OF THE CASE .......... | 2

i ee hse scwcd esos. 4

B. The Administrative Hearings ....... 5

C. The Proceedings in the District Court 6

D. The Court of Appeals Decision ..... 6

REASONS FOR GRANTING THE WRIT....... 7

I. THE DECISION BELOW IS IN

CONFLICT WITH DECISIONS OF THIS

COURT AND OTHER CIRCUITS ON THE

STANDARD TO APPLY IN

DETERMINING WHETHER SCHOOL

NURSING SERVICES MUST BE

PROVIDED TO HANDICAPPED

CHILDREN AND PRESENTS IMPORTANT

ISSUES OF FEDERAL LAW AND

STATUTORY CONSTRUCTION ..........

~l

A. A Balancing Test Fundamentally

Conflicts with the Applicable

Regulations and Tatro................ 9

Il.

iv

The Balancing Test Applied by the

Second Circuit is in Apparent Conflict

with the Standard Applied by the Ninth

CRONE i sxe ipdakb cesses cidce sss

The Novel Balancing Test Adopted by

the Court Below Will Lead to

Inconsistent Results In Both

Administrative and Judicial Proceedings

and Will Generate Protracted

Litigation, Unlike the Regulatory

Standard Applied in Tatro............

THE SECOND CIRCUIT’S EXPANDED

DEFINITION OF THE MEDICAL

SERVICES’ EXCLUSION CONFLICTS

WITH THIS COURT'S ANALYSIS IN

ROWLEY AND UNDERMINES THE

STATUTORY MANDATE TO PROVIDE

AN EDUCATION IN A REGULAR

SCHOOL ENVIRONMENT WHENEVER

PI on xo o 6k cae GSN PA8 bile 00

I coy a's ku She nc aoe be eke av ke

EE Since ccsh Ose ohne aa geawey cede

Page

1]

13

14

16

la

TABLE OF AUTHORITIES

Cases: Page

Antokowiak v. Ambach, 653 F. Supp. 1405

2. Sere erry eee 12n

Battle v. Pennsylvania, 629 F.2d 269 (3d Cir.

1980), cert. denied sub nom. Scanlon v. Battle,

Se EM I o's 2 akin gdkacksacnet gases lin

Bevin H. v. Wright, No. 86-1830 (W.D. Pa.

I Ee TE a win dir ecer i hsne cance bsalpn ds se 13

Board of Education v. Rowley, 458 U.S. 176

NG poor th sith a Oe gees Sais oheke WHA 4,7, 14

Clevenger v. Oak Ridge School Board, 744 F.2d

ef Re | SPT TT ET Tee CT eT Tree lin

Espino v. Besteiro, 520 F. Supp. 905 (S.D. Tex.

A ee ee ee ent ey a ere ee 14

Department of Education v. Katherine D., 727

F.2d 809 (9th Cir. 1983), affg in relevant part

531 F. Supp. 517 (D. Haw. 1982), cert.

GE, Ge Seas RUE GEE Fb bp ac cn hase ae 7, 11, 12

Doe v. Anrig, 651 F. Supp. 424 (D. Mass. 1987) . 12n

Irving Independent School District v. Tatro, 468

ee I aa ose Ko aa boc eee s Shae ese es passim

Kruelle v. New Castle County School District,

Oat F.Oe GET COG Cie, BORE os oivoikec ee eeess lin

Tokarcik v. Forest Hills School District, 665 F.2d .

443 (3d Cir. 1981), cert. denied sub nom.

Scanlon v. Tokarcik, 458 U.S. 1121 (1982) .... 12n, 14

Tatro v. Texas, 625 F.2d 557 (5th Cir. 1980) .... 14

vi

Page

STATUTES AND RULES:

So passim

MMPI I og cc ck cece cece cccccencccoce 2

34 C.F.R. § 300.13 (1987)..................... 2, 8, 9

34 C.F.R. §§ 300.500-556 (1987)............... 2, 14, 15

S. Rep. No. 168, 94th Cong., Ist Sess. 5,

reprinted in U.S. Code Cong. Admin. News

ES re Oe een in a 7

S. Rep. No. 455, 94th Cong., Ist Sess. 30,

reprinted in 1975 U.S. Code Cong. Admin.

ON Va oes Seb 4 Pek 50d Ob ss one 8

OTHER:

New York City Board of Education, Educational

Serv. for Students with Handicapping

PD gg. . v na ecw wecs cetececce. 15

Office of Technology Assessment, Technology

Dependent Children: Hospital Care v. Home

ee Ue era ce ly 2n

IN THE

Supreme Court of the United States

Ocroser TERM, 1987

MELISSA DETSEL, an infant by her mother and next friend,

MARY JO DETSEL,

Petitioner,

—Y¥, =

BOARD OF EDUCATION OF THE AUBURN

ENLARGED CITY SCHOOL DISTRICT, PETER

KACHRIS, individually and as Superintendent of the

Auburn Enlarged City School District, GORDON

AMBACH, Commissioner of the New York State

Education Department,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner respectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States Court

of Appeals for the Second Circuit, which affirmed an order of

the United States District Court for the Northern District of New

York denying petitioner’s motion for summary judgment, grant-

ing respondents’ motions for summary judgment and dismiss-

ing the action.

OPINIONS BELOW

The per curiam opinion of the United States Court of Ap-

peals for the Second Circuit (App. la)' is reported at 820 F.2d

587 (2d Cir. 1987).

The opinion of the United States District Court for the

Northern District of New York (App. 3a) is reported at 637 F.

Supp. 1022 (N.D.N.Y. 1986).

' References to “App.” are to the Appendix to this Petition.

JURISDICTION

The judgment of the Court of Appeals was entered on June

12, 1987. By order of this Court dated September 3, 1987, the

time to file this petition was extended to and including October

13, 1987. (App. 14a). This Court’s jurisdiction is invoked pur-

suant to 28 U.S.C. § 1254(1).

STATUTE AND REGULATIONS INVOLVED

The statute and regulations involved in this proceeding are

The Education of All Handicapped Children Act, 20 U.S.C.

§ 1401 et seq.; 34 C.F.R. § 300.13 (1987); 34 C.FR.

§§ 300.500-556 (1987). (App. 15a-2la).

STATEMENT OF THE CASE

This is an action arising out of the failure by Respondent-

The Board of Education of the Auburn Enlarged City School

District (the “School District”) to fulfill its obligation under The

Education of Al! Handicapped Children Act, 20 U.S.C. § 1401

et seq. (the “EAHCA” or the “Act”) and regulations promulgated

thereunder by the United States Department of Education (the

“Regulations”), to provide for nursing services required by a han-

dicapped child in order to attend school. As a result of the School

District’s refusal to carry out its responsibilities, Melissa Detsel,

a bright nine-year old handicapped child, will be confined to

her home. Contrary to the fundamental purpose of the EAHCA,

she — and hundreds of children like her — will thus be deprived

of the benefits of interaction with other handicapped and

nonhandicapped children.’

In Irving Independent School District v. Tatro, 468 U.S. 883

(1984), this Court held that nursing services must be provided

upon a showing that (1) the service is required to assist a

*The Office of Technology Assessment estimates that between 680 and 2000

children have potentially the same needs as Melissa. Office of Technology

Assessment, Technology Dependent Children: Hospital Care v. Home Care

(1987) at p. 31.

handicapped child to beuefit from special education; and (2)

the service is not excluded as a “medical service,” defined in the

Regulations as certain services which must be provided by a

physician. Holding that the Regulations should be afforded

deference, this Court further found that the definition of

“medical services” therein excluded only services which must

necessarily be provided by a physician — not by a school nurse

or other qualified person.

There is no dispute under the first prong of the Tatro test that

the health care services involved in this case are required to assist

Melissa to benefit from special education. Respondents conceded,

and the District Court held, that without these supportive ser-

vices Melissa would not be able to attend school and could not

receive the benefits of the special education program designed

for her. There is also no dispute, as Respondents have further

conceded, that the services required by Melissa are within the

competence and expertise of a school nurse, and that they need

not be performed by a physician.

The principal issue presented for review is whether the Court

below applied the correct standard in determining that the nur-

sing services required by Melissa are “medical services” and thus

excluded from the EAHCA, even though the services were un-

questionably within the competence and expertise of a school

nurse. Instead of applying the clearcut criteria contained in the

Regulations and employed by this Court in Tatro, the Second

Circuit adopted a “balancing test” to determine whether nurs-

ing services are “medical services.” Under the novel test fashioned

by the Second Circuit, an ad hoc examination of such factors

as whether the services are “complex” or “intermittent,” among

other individual circumstances, is required to determine whether

they should properly be excluded as “medicai services.” Con-

trary to the Regulations and this Court’s decision in Tatro, the

level of expertise of the provider of the services is not even the

predominant, let alone the dispositive, factor to be weighed in

the balancing test endorsed by the court below. Petitioner

respectfully submits that the decision by the Second Circuit

presents conflicts with this Court and other Circuits, raises

important questions of federal law and statutory construction,

and will lead to uncertainty, protracted litigation and conflict-

ing results in both administrative and judicial forums.

In addition, the Second Circuit failed improperly to take in-

to account the fundamental purpose of the Act which is, as this

Court recognized in Board of Education v. Rowley, 458 U.S.

176 (1982), to educate handicapped children with non-

handicapped children whenever possible. The anomalous result

of the decision below is that Melissa will receive instruction by

one or more teachers at her home, at a cost to respondents that

will exceed the cost of providing nursing services in school. By

relegating the child to home instruction and depriving her of

interaction with other children for no rational purpose, the deci-

sion below frustrates the accomplishment of the Act’s primary

goal.

A. The Facts

Melissa is a bright nine-year old physically handicapped child

with an incomplete diaphragm and an abnormally developed

lung. She breathes with the assistance of a ventilator through

a tracheostomy and is fed and receives medication through a

gastrostomy and jejunostomy tube.

Her conditions require respiration and feeding assistance, fre-

quent monitoring of her respiratory status, including the ad-

ministration of oxygen. Because of the potential for congestive

heart failure, a nurse must be available to provide cardio-

pulmonary resuscitation, if necessary. It is undisputed that while

each element of this assistance may not ordinarily be ad-

ministered by a layman, the care can be provided by a licensed

practical nurse (“LPN”) or a registered nurse (“RN”), such as

the nurse employed by the School District. The expertise of a

physician is not required.

As a result of the decision below, Melissa will be confined to

her home and deprived of the educational benefits associated

S

with her interaction with other children.* The Medicaid pro-

gram for which she is eligible will provide for nursing care at

her home (but not at school), and the School District has

acknowledged its obligation to provide one or more teachers and

therapists in Melissa's home. The School District has further

acknowledged that the costs of providing educational services

to Melissa at home exceed the cost of providing for nursing ser-

vices in school.

B. The Administrative Hearings

When petitioner was first notified that the nursing services

would be terminated, she requested an impartial hearing. After

two days of testimony by seven witnesses, the hearing officer

entered an order directing respondents to “provide a suitably

trained person to attend to [Melissa’s] needs while [attending]

a special education class.” He concluded that application of

Tatro, and the relevant provisions of the EAHCA and regula-

tions, required respondents:

to provide appropriate supportive services to meet

both the routine as well as the potentially life threaten-

ing needs exhibited by Melissa Detsel, provided that

the needs can be met without a physician, so that she

will be able to continue to attend the public school

program prescribed [by the school district’s commit-

tee on the handicapped].

Respondent-School District appealed to the New York State

Commissioner of Education who reversed the hearing officer’s

decision.

* Since Melissa has begun to attend school, she has interacted regularly with

non-handicapped children in recreational activities and in the classroom. Her

treating physician attributed her rapid acceleration of speech, communica-

tion and social skills directly to her ability to interact with other children.

C. The Proceedings in the District Court

Petitioner instituted this action in the United States District

Court for the Northern District of New York seeking an order

requiring, among other things, Respondent-The School District

to provide nursing care while Melissa attended school. All par-

ties moved for summary judgment, and there are no material

facts in dispute.

Conceding that the services required by Melissa could be per-

formed competently by a school nurse, respondents contended

that the nursing services fell within the “medical services” ex-

clusion. As set forth in the District Court’s opinion, respondents

urged the court “to ignore the technical distinction in the Regula-

tions which would exclude therapeutic services when perform-

ed by a physician but would not exclude services of this type

when performed by a school nurse or other qualified person.”

(App. 9a). Respondents maintained that instead of the bright

line provision contained in the Regulations, which turns on the

qualifications of the provider of the services, an ad hoc inquiry

into the nature, extent and complexity of the services was re-

quired to determine whether the exclusion applied. In June,

1986, the District Court denied petitioner’s motion for summary

judgment, awarded summary judgment for respondents and

dismissed the action.

In its analysis, the District Court departed from the textual

requirements of the EAHCA and the Regulations. It found that

notwithstanding the language of the Regulations, the qualifica-

tions of the provider of the services had no bearing upon its deter-

mination. The District Court held that the nursing services re-

quired by Melissa “more closely resemble” the “medical services

specifically excluded” from the Act. It noted explicitly that “even

though the services do not fulfill the ‘physician’ requirement set

forth in [the Regulations], the exclusion of the disputed services

is in keeping with its spirit.” (App. 12a).

D. The Court of Appeals Decision

The Second Circuit affirmed the judgment of the District

Court. In a per curiam opinion, it adopted the unprecedented

ad hoc balancing test applied by the District Court and con-

cluded that “in all the circumstances, the district court gave pro-

per effect to the statutory scheme in balancing the interests of

the parties.” (App. 2a). The opinion made no mention of this

Court’s decision in Tatro, and failed to address the “mairstream-

ing” requirement of the EAHCA which, as this Court held in

Board of Education v. Rowley, 458 U.S. 176, 202 (1982), “re-

quires participating States to educate handicapped children with

nonhandicapped children whenever possible.”

In its decision, the Second Circuit cited only to the decision

by the Ninth Circuit in Department of Education v. Katherine

D., 727 F.2d 809 (9th Cir. 1983), aff’g in relevant part 531 F.

Supp. 517 (D. Haw. 1982), cert. denied. 471 U.S. 1117 (1985),

which ordered a school board to provide nursing services. The

court attempted to distinguish the Ninth Circuit’s decision under

its balancing test, finding that the services at issue in that case

were “intermittent, not constant,” and did not require “as much

expertise.” (App. 2a).

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW IS IN CONFLICT WITH

DECISIONS OF THIS COURT AND OTHER CIR-

CUIFTS ON THE STANDARD TO APPLY IN DETER-

MINING WHETHER SCHOOL NURSING SER-

VICES MUST BE PROVIDED TO HANDICAPPED

CHILDREN AND PRESENTS IMPORTANT ISSUES

OF FEDERAL LAW AND _ STATUTORY

CONSTRUCTION

Congress enacted the EAHCA in 1975 in light of the

“{i]Jncreased awareness of the educational needs of handicap-

ped children and landmark court decisions establishing the right

to education for handicapped children.” S. Rep. No. 168, 94th

Cong., lst Sess. 5, reprinted in 1975 U.S. Code Cong. & Admin.

News 1425, 1429. With respect to the objective of ensuring that

handicapped children are educated in a regular environment,

the legislative history of the Act provides:

[While instruction may take place in such locations

as classrooms, the child’s home, or hospitals and in-

stitutions, the delivery of such instruction must take

place in a manner consistent with the requirements

of law which provide that to the maximum extent ap-

propriate handicapped children must be educated

with children who are not handicapped, and that han-

dicapped children should be placed in special classes,

separate schooling, or any other educational environ-

ment only when the nature or severity of the handicap

is such that education in regular classes with the use

of supplementary aids and supportive services can-

not be achieved satisfactorily.

S. Rep. No. 455, 94th Cong., Ist Sess. 30, reprinted in 1975 U.S.

Code Cong. & Admin. News 1480, 1483 (emphasis supplied).

To insure that handicapped children are able to attend school,

the Act includes a wide range of “related services,” which are

defined as:

transportation, and such developmental, corrective,

and other supportive services (including speech

pathology and audiology, psychological! services,

physical and occupational therapy, recreation, and

medical and counseling services, except that such

medical services shall be for diagnostic and evalua-

tion purposes only) as may be required to assist ahan- _

dicapped child to benefit from special education, and

includes the early identification and assessment of

handicapped conditions in children.

20 U.S.C. § 1401(17) (emphasis supplied). The term “related

services” is defined explicitly in the Regulations as a term that

“also includes school health services.” 34 C.F.R. §§ 300.13(a)

(1987). In turn, “school health services” are defined to mean “ser-

vices provided by a qualified school nurse or other qualified per-

son.” 34 C.F.R. § 300.13(b)(10) (1987) (emphasis supplied).

The Regulations expressly distinguish between services pro-

vided by physicians and by school nurses or other qualified per-

sons. The term “medical services,” which are excluded from Sec-

tion 1401(17) of the Act, are defined in the Regulations as “ser-

vices provided by a licensed physician.” 34 C.F.R. § 300.13(b)(4)

(1987). The statutory and regulatory scheme is thus simple.

When health care services are required in order for the child

to attend school, a school district must provide them unless the

required service can only be performed by a physician.

A. A Balancing Test Fundamentally Conflicts with the Ap-

plicable Regulations and Tatro

In Irving Independent School District v. Tatro, 468 U.S. 883

(1984), this Court applied the Regulations according to their

terms in determining whether the school district was obligated

to provide as a “related service” a procedure known as clean in-

termittent catheterization, required by the handicapped child

every three or four hours to avoid injury to her kidneys. This

Court held:

The regulations define “related services” for handicap-

ped children to include “school health services” which

are defined in turn as “services provided by a qualified

school nurse or other qualified person.” “Medical ser-

vices” are defined as “services provided by a licensed

physician.” Thus, the Secretary [of Education] has

determined that the services of a school nurse. . . are

not subject to exclusion as a “medical service,” but that

the services of a physician are excludable as such.

468 U.S. at 892 (citations omitted).*

* In response to the schooi district’s fears that this construction of the Regula-

tions could require it to provide for every necessary life support system, this

Court further identified three limitations embodied in the legislative scheme.

First, in order to be entitled to receive the service, the child must be han-

dicapped as defined by the EAHCA and regulations. Second, the service must

be necessary to aid a handicapped child to benefit from special education.

(Footnote Continued)

10

In conflict with this standard, the Second Circuit concluded

that the district court “gave proper effect to the statutory scheme

in balancing the interests of the parties.” (App. 2a). The novel

and amorphous “balancing test” endorsed by the Second Cir-

cuit directly conflicts with the plain wording of the applicable

statutory and regulatory provisions as applied in Tatro. The Se-

cond Circuit virtually ignored the bright line test contained in

the Regulations which do not refer to such individualized, ad

hoc determinations. As this Court held in Tatro, the “Secretary

[of Education’s determination] that the services of a school nurse

. are not subject to exclusion as a ‘medical service, but that

the services of a physician are excludable as such” reasonably

reflects Congress’ intent and therefore must be given deference.

Tatro, 468 U.S. at 892. By eliminating the qualifications of the

provider as the determinent factor, the Second Circuit failed

to defer to the regulations promulgated by the Department of

Education in further conflict with the decision of this Court.

Moreover, even an application of the balancing test endors-

ed by the Second Circuit reveals not a single legitimate interest

of respondents in refusing to provide nursing services to Melissa.

Respondents have acknowledged their responsibilities under the

EAHCA to provide one or more teachers for Melissa at her home

where the Medicaid program for which Melissa is entitled will

provide for nursing care. They have also acknowledged that the

cost of providing such educational services at Melissa’s home will

exceed the cost of providing nursing services in school. In “balan-

cing” the interests of the parties, there is no countervailing

factor based on cost savings or otherwise that can even be plac-

ed on the scale. In the absence of any competing interest,

If the treatment or medication could be given during non-school hours, then

the school district is not required to provide the service, even if the burden

would be minimal. Third, the service need only be provided if it can be per-

formed by a nurse or other person, not a physician. Given these inherent limita-

tions, this Court made clear that its holding would not open the door to re-

quiring a full range of services that might otherwise be argued to constitute

“related services.” 468 U.S. at 894.

11

respondents have no basis to refuse to provide the necessary ser-

vices even under the balancing test applied by the court below.‘

B. The Balancing Test Applied by the Second Circuit

is in Apparent Conflict with the Standard Applied

by the Ninth Circuit

The balancing approach followed by the Second Circuit is

also in apparent conflict with the decision by the Ninth Circuit

in Department of Education v. Katherine D., 727 F.2d 809 (9th

Cir. 1983), affg in relevant part 531 F. Supp. 517 (D. Haw. 1982),

cert. denied, 471 U.S. 1117 (1985). In Katherine D., the Ninth

Circuit properly drew the distinction between “medical services”

that must be performed by a physician, and services that can

be provided by a nurse or other trained person. Accordingly,

it required defendants to provide nursing services which were

almost identical to the services at issue in this lawsuit. In that

case, the handicapped child required a tracheostomy tube to

breathe and expel secretion from her lungs. Her disease caused

mucus to accumulate in her lungs, making her susceptible to

recurrent pulmonary infections. Because of this condition, the

child needed assistance in order to suction her lungs through

her tracheostomy tube. Even more critically, she required a per-

son trained to provide emergency care in the event that the tube

became dislodged while she was attending school.

* Even if cost were a factor, which here it is not, costs for nursing care are

far less burdensome than other costs that the Act routinely requires. E.g.,

Clevenger v. Oak Ridge School Bd., 744 F.2d 514 (6th Cir. 1984) (requiring

residential placement in private institution where necessary to a handicap-

ped child’s education); Battle v. Pennsylvania, 629 F.2d 269 (3d Cir. 1980),

cert. denied sub nom. Scanlon v. Battle, 452 U.S. 968 (1981) (requiring year

round schooling for handicapped children who could not progress if educated

for the 180 school day period provided for other children). The Act requires

participants “to provide a comprehensive range of services to accomodate a

handicapped child’s educational needs, regardless of financial and ad-

ministrative burdens.” Kruelle v. New Castle County School Dist., 642 F.2d

687, 695 (3d Cir. 1981).

12

The district court held that these services — the administra-

tion of medication, the use of specialized equipment to suction

excess mucus and access to a person trained to handle emergency

problems with her tracheostomy — were each “EAHCA-man-

dated related services.” 531 F. Supp. at 526. Concluding that

these services “can be provided by a nurse or other trained per-

son who need not be a physician”, the court found that “this

help is within the definition of related services (e.g., because

it is a school health service) or is, in any event, not the type of

medical assistance which is excludable from the definition of

‘related services. ” Id.* In affirming the district court’s decision,

the Ninth Circuit held that “[t]hese services could have been

provided by a ‘schocl nurse or other qualified person, and thus

fall squarely within the requirements of the Act.” 727 F.2d at 815.

The Second Circuit’s attempt to square its holding with the

Ninth Circuit by drawing minute factual distinctions does not

eliminate the conflict in approach between the two decisions.

It serves, however, to illustrate the divergent results that will

flow from a “balancing test” as opposed to the test contained

in the Regulations. Even though the tracheal suctioning and

monitoring services were virtually identical to the services re-

quired by Melissa, the Second Circuit found the Ninth Circuit’s

decision “unpersuasive” since the care required in that case was

“intermittent, not constant,” and “did not require as much ex-

pertise.” (App. 2a). This effort to reconcile the holdings does not

and cannot cure the fundamental conflict between the standards

applied by each court. That conflict arises from the divergent

standards themselves, not by their application. In Katherine D..,

the Ninth Circuit found the qualifications of the provider as the

cornerstone of the standard it applied, while the “balancing test”

applied by the Second Circuit did not even take that critical

factor into account.

* Other courts have recognized the distinction between care by a physician

and other professionally trained individuals. Tokarcik v. Forest Hills School

Dist., 665 F.2d 443, 455 (3d Cir. 1981), cert. denied sub nom. Scanlon v. Tokar-

cik, 458 U.S. 1121 (1982); Doe v. Anrig, 651 F. Supp. 424, 431 n.6 (D. Mass.

1987); Antkowiak v. Ambach, 653 F. Supp. 1405, 1416 (W.D.N.Y. 1987).

13

C. The Novel Balancing Test Adopted by the Court Below

Will Lead to Inconsistent Results in Both Administrative

and Judicial Proceedings and Will Generate Protracted

Litigation, Unlike the Regulatory Standard Applied in

Tatro

Application of a “balancing test”, requiring a detailed ad hoc

examination of individual questions such as the nature, extent,

complexity and cost of nursing services, will seriously under-

mine the uniformity of results promoted by the regulatory stan-

dard applied in Tatro and other courts. Because the test

necessarily involves scrutiny of a variety of facts underlying each

case, it will inevitably generate uncertainty in the administrative

process and lead to protracted litigation and delay in an area

of federal concern.

Bevin H. v. Wright, No. 86-1830 (W.D. Pa. August 4, 1987),

provides a recent illustration of the uncertainty and delay that

will be created by the balancing test. That case, decided within

two months of the Second Circuit’s decision, reveals that no

recognizable standard has emerged as a result of the adoption

of the balancing test. In applying this test, the district court

found the nursing services “complicated,” “extensive,” “constant”

and “costly” and held that they need not be provided. With such

vague formulations guiding courts and administrators, unifor-

mity and consistency cannot be expected, and their ad hoc deter-

minations will lead to inevitable delay.

In addition, the court in Bevin H. expressly noted that, in

its view, the definition of “related services” is subject to “still

developing case law.” Slip op. at 1. Petitioner respectfully sub-

mits that Tatro is dispositive, and that the standard used by this

Court does not require, and should not be susceptible to, fur-

ther case law construction. The implication of the Second Cir-

cuit’s decision and Bevin H. is, however, inescapable. By inviting

courts to engage in individualized scrutiny of any number of

factors they might deem relevant, the entire process will delay

the provision of related services to handicapped children at times

most critical for their interaction with peers.

14

The absence of clearcut criteria poses difficulties not only for

courts, but also for school administrators and parents who are

encouraged to work cooperatively. See, e.g., 34 C.F.R. § 300.504

(1987). In addition, the balancing test will require extensive

testimony, including expert testimony, concerning such matters

as a comparison of the complexity of the service at issue to those

which have been held to be related services. In contrast, under

the regulatory standard, the sole issue is whether the service can

be provided by a school nurse or qualified person other than

a physician. The Second Circuit’s displacement of this clearcut

regulatory standard is an important area of federal concern and

warrants review by this Court.

II. THE SECOND CIRCUIT'S EXPANDED DEFINI-

TION OF THE MEDICAL SERVICES’ EXCLU-

SION CONFLICTS WITH THIS COURT'S

ANALYSIS IN ROWLEY AND UNDERMINES

THE STATUTORY MANDATE TO PROVIDE AN

EDUCATION IN A REGULAR SCHOOL EN.-

VIRONMENT WHENEVER POSSIBLE

The decision below also undermines the fundamental pur-

pose of the EAHCA to provide an education in a regular school

environment. It failed to take into account the analysis in Board

of Education v. Rowley, 458 U.S. 176, 202 (1982), where this

Court reviewed at length the statutory history of the Act and

concluded that “[t]he Act requires participating States to educate

handicapped children with nonhandicapped children whenever

possible.”

A handicapped child must be educated in a regular school

environment unless “the nature of the handicap is such that

education in regular classes with the use of supplementary aids

‘cannot be achieved satisfactorily.” ” Espino v. Besteiro, 520 F.

Supp. 905, 911 (S.D. Tex. 1981) (citations omitted) (emphasis sup-

plied); see Tatro v. Texas, 625 F.2d 557, 563 n.15 (5th Cir. 1980);

Tokarcik v. Forest Hills School Dist., 665 F.2d 443, 456 (3d Cir.

1981), cert. denied sub nom. Scanlon v. Tokarcik, 458 U.S. 1121

(1982) (citations omitted). No such showing was or can be made.

15

Any interpretation of a statutory exception to the general rule

requiring supportive services to be provided, 20 U.S.C. § 1401(17),

and to the specific inclusion of school health services as a sup-

portive service, must be made within the context of the underly-

ing statutory command to educate handicapped children in the

“least restrictive environment.” The EAHCA requires that “to

the maximum extent appropriate, handicapped children . . .are

educated with children who are not handicapped.” 20 U.S.C.

§ 1412(5). It specifically requires the states to assure that “removal

of handicapped children from the regular educational environ-

ment occurs only when the nature or severity of the handicap

is such that education in regular classes with the use of sup-

. plementary aids and services cannot be achieved satisfactori-

ly.” Id. (emphasis added). Thus the statute recognizes the role

of supportive services in ensuring compliance with the mandate

for education in the least restrictive environment.

The implementing Regulations similarly emphasize the impor-

tance of education in the “least restrictive environment.” 34 C.F.R.

§§ 300.550-556 (1987). They require that “[u]nless a handicap-

ped child’s individualized education program requires some other

arrangement, the child is educated in the school which he or she

would attend if not handicapped.” 34 C.F.R. § 300.552(c) (1987).

When the severity of the handicap is such that the child requires

a separate classroom for handicapped children, the participation

of the handicapped child with the nonhandicapped in non-

academic settings, such as extracurricular activities, is required.

34 C.F.R. § 300.553 (1987) (and comment thereto).

Home education, to which petitioner and other severely han-

dicapped children will be relegated if respondents prevail, is the

most restrictive form of education. See e.g., New York City Board

of Education, Educational Serv. for Students with Handicapp-

ing Conditions (1985) at p. 21. The chilic is not only isolated from

nonhandicapped children, she is removed from all contact with

any children in the educational process. This result must be plac-

ed in the context of available alternatives. Where, as here, the child

will be relegated to home instruction, with the school district pro-

viding teachers at home at greater cost than providing nurse care

in school, that result is plainly irrational.

16

CONCLUSION

For the foregoing reasons, petitioner respectfully requests that

this Court issue a writ of certiorari to review the decision of the

United States Court of Appeals for the Second Circuit.

Dated: New York, New York

October 13, 1987

HERBERT SEMMEL

(Counsel of Record)

NEW YORK LAWYERS FOR THE

PUBLIC INTEREST

135 East 15th Street

New York, New York 10003

(212) 777-7707

Attorneys for Petitioner

Of Counsel:

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM

919 Third Avenue

New York, New York 10022

(212) 735-3000

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TABLE OF CONTENTS

Opinion of the Court of Appeals for the Second

eee ee ade Ca tenes 4 Hie Na Es a's 68

Opinion of the District Court for the Northern

RE A I WO ik kc cc see esen

Order of this Court Extending Time to File

Petition for Writ of Certiorari ...............

Statutory and Regulatory Provisions Involved ...

Page

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Opinion of the Court of Appeals

for the Second Circuit

a

4

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Melissa DETSEL, an Infant, by her mother and next friend

Mary Jo DETSEL, Plaintiffs-Appellants,

V.

BOARD OF EDUCATION OF the AUBURN ENLARGED CI-

TY SCHOOL DISTRICT, et al., Defendants-Appellees.

No. 1262, Docket 86-7619.

United States Court of Appeals,

Second Circuit.

Argued June 11, 1987.

Decided June 12, 1987.

Appeal from a judgment of the United States District Court

for the Northern District of New York, Neal P. McCurn, Judge,

see 637 F.Supp. 1022 (1986), dismissing complaint seeking to

compel school district to provide nursing services for handicap-

ped child under Education of All Handicapped Children Act,

20 U.S.C. § 1401 et seq.

Anne W. Crawford, New York City (Skadden, Arps, Slate,

Meagher & Flom, Herbert Semmel, New York Lawyers for the

Public Interest, New York City, Legal Services of Central New

York, Syracuse, N.Y., on the brief), for plaintiffs-appellants.

Edward C. Hooks, Ithaca, N.Y. (James Charles Holahan,

Treman & Clynes, Harris, Beach, Wilcox, Rubin and Levey,

Ithaca, N.Y., on the brief), for defendants-appellees Bd. of Educ.

of the Auburn Enlarged City School Dist. and Peter Kachris.

Seth Rockmuller, Albany, N.Y. (James H. Whitney, Albany,

N.Y., on the brief), for defendant-appellee Com’r of Educ.

Norman H. Gross, Albany, N.Y., filed a brief for New York

State School Boards Ass’n as amicus curiae on behalf of

defendants-appellees.

Before VAN GRAAFEILAND, KEARSE and MAHONEY,

Circuit Judges.

2a

PER CURIAM:

Plaintiff Melissa Detsel, a severely handicapped child, suing

by her mother and next friend Mary Jo Detsel, appeals from

a final judgment of the United States District Court for the Nor-

thern District of New York, Neal P. McCurn, Judge, dismissing

her complaint seeking to compel defendants Board of Educa-

tion of the Auburn Enlarged City School District, et al., to pro-

vide her with nursing services pursuant to the Education of All

Handicapped Children Act, 20 U.S.C. § 1401 et seq. (1982). We

conclude that the complaint was properly dismissed for the

reasons stated in the opinion of the district court, reported at

637 F.Supp. 1022 (1986).

We are unpersuaded by plaintiffs’ argument that the district

court gave insufficient deference to the decision in Department

of Education v. Katherine D., 727 F.2d 809 (9th Cir. 1983), aff'g

in relevant part, 531 F.Supp. 517 (D.Haw. 1982), cert. denied,

471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 260 (1985), which

ordered a school board to provide nursing services. Plaintiffs

acknowledge that Melissa needs a full-time person trained to

monitor her respiratory status “constantly” and to assist her with

her physical needs while she attends school, and that the ser-

vice must be provided by “at least a licensed practical nurse”

and “cannot be adequately provided by a regular school nurse

who must care for other children.” (Plaintiff's Statement of Facts

Pursuant to Northern District Rule 10). In contrast, the opinions

of the Ninth Circuit and the Hawaii district court make plain

that Katherine D. needed care that was intermittent, not cons-

tant, see 531 F.Supp. at 520, and which did not require as much

expertise, see 727 F.2d at 815 n. 6 (“It is indisputable that even

a lay person could have been trained to provide the services

Katherine required.”).

We conclude that, in all the circumstances, the district court

gave proper effect to the statutory scheme in balancing the in-

terests of the parties. The judgment of the district court is

affirmed.

Opinion of the

District Court for the Northern District of New York

Aa it a:

oo ny a4

3a

Melissa DETSEL, an infant by her mother and next friend, Mary

Jo DETSEL, Plaintiff,

Vv.

BOARD OF EDUCATION OF the AUBURN ENLARGED CI-

TY SCHOOL DISTRICT, Peter Kachris, individually and as

Superintendent of the Auburn Enlarged City School District,

Gordon Ambach, Commissioner of the New York State Educa-

tion Department, Stephen Bandas, individually and as Com-

missioner of the Cayuga County Department of Social Ser-

vices, and Cesar Perales, individually and as Commissioner

of the New York State Department of Social Services,

Defendants.

No. 84-CV-1353.

United States District Court,

N.D. New York.

June 23, 1986.

Mother of handicapped student who attended special educa-

tion class brought action under Education of All Handicapped

Children Act seeking to compel school district and board of

education to provide student with constant nursing care while

she attended public school. The District Court, McCurn, J., held

that Education of All Handicapped Children Act did not re-

quire school district and board of education to provide severely

physically disabled child with constant in-school nursing care.

Dismissed.

Legal Services of Cent. New York, Inc., Syracuse, N.Y., for

plaintiff; Joanne Hunt Piersma, of counsel.

Treman & Clynes, Office of Harris, Beach, Wilcox, Rubin

and Levey, Ithaca, N.Y., for defendants Bd. of Educ. of Auburn

City School Dist. and Peter Kachris; Edward C. Hooks, of

counsel.

Robert D. Stone, Albany, N.Y., for defendant Ambach; James

H. Whitney, of counsel.

4a

MEMORANDUM-DECISION AND ORDER

McCURN, District Judge.

1. Background

The plaintiff, Mary Jo Detsel, has brought this action on

behalf of her daughter Melissa, a handicapped student who at-

tends a special education class at the Seward Elementary School

in Auburn, seeking relief under the Education of All Handicap-

ped Children Act, 20 U.S.C. § 1401 et seg. (EAHCA); section

504 of the Rehabilitation Act, 29 U.S.C. § 794; and 42 U.S.C.

§ 1983. The plaintiff asks for declaratory and injunctive relief

compelling the defendants Board of Education of the Auburn

Enlarged City School District (Board of Education); Peter

Kachris, Superintendent of the Auburn Enlarged City School

District; and, Gordon Ambach, Commissioner of the New York

State Education Department; to provide Melissa with constant

nursing care while she attends public school.

Melissa is a seven-year-old child who suffers from severe

physical disabilities. In order to live, she requires constant

respirator assistance and a continuous supply of forty percent

oxygen. All of the parties to the instant action agree that Melissa's

condition requires constant vigilance by an individual trained

to monitor her health. The present controversy concerns just

who must provide her with this care.

Formerly, the Cayuga County Department of Social Services

had provided Melissa with the services of one nurse from 7:00

a.m. until 3:00 p.m. and of a second nurse from 11:00 p.m. un-

til 7:00 a.m. However, the Department of Social Services refus-

ed to continue paying for the services of the first nurse who ac-

companied Melissa to school when she began attending

kindergarten in 1983. Melissa enrolled in a BOCES Option III

multiply handicapped class at the Seward Elementary School

upon the recommendation of the school district’s Committee

on the Handicapped (COH) which had classified her as “other

health impaired.” At that time, the Board of Education protested

that it was not obligated to compensate the nurse employed to

Sa

render Melissa assistance during school hours, but it did agree

to pay her until the plaintiff ascertained whether other sources

of payment were available.

Upon notification by the school district that it would not

shoulder the expense of extensive in-school nursing care, plain-

tiff requested an impartial hearing pursaunt to 20 U.S.C. §

1415(b) and the N.Y.Educ. Law § 4404(1) to review this deci-

sion. On December 14, 1984, the Hearing Officer found that

the disputed nursing care did constitute “related services” within

the meaning of the EAHCA. Consequently, the Hearing Officer

determined that the Board of Education was indeed obligated

to provide and pay for these services. The Board of Education

appealed this determination. By a decision dated February 25,

1985, the New York State Commissioner of Education, Gordon

Ambach, reversed the Hearing Officer’s order directing the

school district to “provide a suitably trained person to attend

to [Melissa’s] needs while [attending] a special education class.”

Decision of Hearing Officer, Marc Reitz, Ex. A, Defendant Am-

bach’s Submitted Record of Appeal; Decision of New York State

Commissioner of Education, Ex. F, Defendant Ambach’s Record

of Appeal, at p. 1. The Commissioner found that the services

sought by the plaintiff were not “related services” within the

meaning of the EAHCA. The plaintiff now seeks judicial review

of the Commissioner’s decision.

2. Discussion

A. Education of All Handicapped Children Act

(EAHCA).

The Education of All Handicapped Children Act, 20 U.S.C.

§ 1401 et seq., creates a comprehensive scheme for assuring that

handicapped children receive a “free appropriate public educa-

tion.” 20 U.S.C. § 1401. A “free appropriate public education”

includes “special education” and “related services.” No state or

local educational agency may receive federal funding unless it

provides the handicapped with this opportunity. 20 U.S.C. §

1412(1). An individualized education program (IEP) must be

developed for each handicapped child which describes the

6a

educational needs of the child and the specially designed in-

struction and related services to be utilized in meeting those

needs. § 1401(19). In addition, the EAHCA imposes detailed pro-

cedural requirements upon States receiving federal funds in ac-

cordance with the provisions of the Act. A parent aggrieved by

the decision of a state educational agency may commence an

action in either state or federal court when the disputed deter-

mination relates to the education and evaluation of the child.

§§ 1415(b), 1415(e).

In accordance with the foregoing mandates, the school

district’s COH studied Melissa’s background and developed an

IEP. As noted hereinbefore, the COH recommended that she

be classified as “other health impaired” and placed in a special

education class for the multiply handicapped. The suggested

IEP listed the particular therapies or “related services” to be

rendered in connection with Melissa’s educational program, in-

cluding speech and language therapy, physical therapy, occupa-

tional therapy, adaptive physical education, and “appropriate

school health services.” See August 29, 1983, COH Recommen-

dation to the Board of Education, Defendant Ambach’s Sub-

mitted Record of Appeal, Ex. C. The plan, however, failed to

identify the specific “health support services” needed. The on-

ly question before the court is the extent to which “school health

support services” are required by the EAHCA. As already noted,

the Hearing Officer determined that the extensive medical care

required by Melissa was encompassed within the term “related

services” as set forth in the EAHCA whereas the Commissioner

concluded it was not.

B. Related Services.

A “free appropriate public education” includes “special educa-

tion and related services.” § 1401(i8). These related services

include:

[t]ransportation, and such developmental, corrective, and

other supportive services (including speech pathology and

audiology, psychological services, physical and occupational

therapy, recreation, and medical and counseling services,

7a

expect that such medical services shall be for diagnostic

and evaluation purposes only) as may be required to assist

the handicapped child to benefit from special education,

and includ[e] the early identification and assessment of

handicapping conditions in children. (emphasis added)

20 U.S.C. § 1401(17).

The Regulations, promulgated by the Department of Educa-

tion, provide additional assistance in delineating the scope of

the term “related services.” For example, health services pro-

vided by a “school nurse or other qualified person” are specifical-

ly denoted as “related services.” 34 C.F.R. §§ 300.13(a),

300.13(b)(10). Medical services are restricted, as in the statute,

to those services rendered for diagnostic or evaluation purposes,

and the regulations further restrict allowable medical services

to those performed by a licensed physician. 34 C.F.R. §§ 300.13(a),

300.13(b)(4). Consequently, under the Regulations, therapeutic

services rendered by a school nurse or “other qualified person”

could qualify as “related services,” but similar services performed

by a licensed physician would be excluded as non-qualifying

“medical services.” See Irving Independent School District v.

Tatro, 468 U.S. 883, 104 S.Ct. 3371, 3377, 82 L.Ed.2d 664 (1984).

These regulations are entitled to deference. Id.

In the instant action, the plaintiff avers that the extensive

medical attention required by her daughter while in school

qualifies as a “related service.” An examination of the record,

including the testimony of the medical personnel responsible

for Melissa’s care, reveals that while in school, Melissa’s nurse

must carry out severai procedures. First, she must check Melissa’s

vital signs and administer medication through a tube to the

child’s jejunum. Moreover, she must perform a procedure known

as a “P, D and C” which calls for the ingestion of saline solu-

tion by the child into her lungs; the nurse subsequently strikes

her about the lungs for four minutes and then suctions out any

mucus collected in her lungs. Also, the individual who accom-

panies Melissa must be prepared to perform cardio-pulmonary

resuscitation because of complications arising from a tracheotomy.

8a

Furthermore, Melissa is likely to suffer from respiratory distress

which has been described as a life-threatening condition by her

doctor. The school physician has testified that the foregoing pro-

cedures would require the services of a licensed practical nurse

(LPN) or a registered nurse. Melissa’s own physician has testified

that the services of a school nurse would be inadequate. See Exs.

A, B, C, and D, Defendant Ambach’s Motion Papers.

The sole issues before the court are whether these services are

mandated by the EAHCA as “supportive services . . . required

to assist a handicapped child to benefit from special education,”

whether these services constitute “health services” to be provided

by a school nurse or “other qualified person,” or whether the

foregoing services must be excluded from the definition of related

services as “medical services” required for a purpose other than

diagnosis or evaluation.

Before addressing the merits of the case, the court feels con-

strained to discuss the appropriate standard of judicial review.

C. Standard of Judicial Review.

The EAHCA permits an aggrieved parent to bring an action

in district court. In reviewing the decision of the state educa-

tional agency,

“[t]he court shall review the records of the administrative

proceeding, shall hear additional evidence at the request

of a party, and basing its decision on the preponderance

of the evidence, shall grant such relief as the court deter-

mines is appropriate.”

20 U.S.C. § 1415(e)(2); Burlington School Committee v. Depart-

ment of Education, 471 U.S. 359, 105 S.Ct. 1996, 2002, 85

L.Ed.2d 385 (1985). On the basis of the record before it, the

court finds that the procedural requirements imposed by the

act have been observed; therefore, the court need only deter-

mine whether Melissa has been denied access to the State’s educa-

tional system. In fact, we “are explicitly cautioned not to

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DIR ARATE OA Seana LEE eS OAR Mn dak Ra. 5

9a

impose a particular substantive educational standard on a State

or to require equality of opportunity for handicapped children

in education.” Karl v. Board of Education of Geneseo C. School

District, 736 F.2d 873, 876 (2d Cir. 1984) (citing Board of Educa-

tion v. Rowley, 458 U.S. 176, 191-203, 102 S.Ct. 3034, 3043-3049,

73 L.Ed.2d 690); accord Council for the Hearing Impaired v.

Ambach, 610 F.Supp. 1051 (E.D.N-Y. 1985). Consequently, the

court must determine whether the services enumerated above

qualify as “supportive services” necessary for Melissa to “benefit

from instruction.” See Rowley, 458 U.S. 176, 102 S.Ct. 3034. If

they are, then the school district and the board of education

must provide and pay for them unless they fall within the ex-

clusion for therapeutic medical services.

D. EAHCA Claim — Irving Independent School District

v. Tatro Decision: Supportive Services or Medical

Services?

The defendants have moved for summary judgment asking

the court to hold that the medical care in question does not con-

stitute a “related service” within the meaning of the EAHCA.

It is their position that although the disputed services do not

necessarily entail the presence of a physician, they are essen-

tially medical in nature, and, therefore, must be excluded under

§ 1401(17) as medical services of a therapeutic nature. The

evidence before the court indicates that the care required by

Melissa should be administered by a LPN or registered nurse

and that the availability of a school nurse is inadequate. The

defendants urge this court to ignore the technical distinction

in the Regulations which would exclude therapeutic services

when performed by a physician but would not exclude services

of this type when performed by a school nurse or other qualified

person. Essentially, the defendants’ argument is that the ques-

tion of whether a supportive service is a medical service is a mat-

ter of degree. They ask the court to consider the type of service

required as the crucial element in determining which category

encompasses it, not the status of the person performing the task.

Plaintiff, on the other hand, cross-moves for summary judg-

ment, and asks the court to hold that, as a matter of law, the

10a

disputed services constitute “supportive services ... required to

assist [Melissa] to benefit from special education.” Plaintiff claims

that because the procedures required may be performed by a

qualified person, other than a physician, they constitute “school

health services,’ and do not fall within the exclusion for

therapeutic medical services enunciated in the EAHCA and the

regulations promulgated thereto. In contrast to the defendants’

argument, the plaintiff focuses entirely on the qualifications of

the person performing the service and rejects any distinction

based upon the character of the service.

In the leading case of Irving Independent School District v.

Tatro, 468 U.S. 883, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984), the

Supreme Court construed the EAHCA and its implementing

regulations. In Tatro, the Court held that the provision of clean

intermittent catheterization (CIC) was a “supportive service”

within the terms of the Act. In that case, petitioner was an eight-

year-old child born with spina bifida. The child suffered from

speech impairments and a bladder dysfunction which required

her to be catheterized every four hours in order to avoid renal

injury. The procedure was described as a simple one which the

child would soon be able to perform herself. Consequently, the

Court ruled that the CIC was indeed a “supportive service ...

required to assist a handicapped child to benefit from special

education.” Id., 104 S.Ct. at 3376. The Court also determined

that the provision of CIC did not constitute an excluded medical

service. Accordingly, the inquiry of this court must be two-fold:

first, do the services in question qualify as “supportive services”

and second, do they fall within the “medical services” exclusion?

In Tatro, the Supreme Court analogized “supportive services”

to services which enable a child to remain at school during the

day. Id. at 3377. Such services provide the child with mean-

ingful access to the education envisioned by Congress. Id. The

CIC was characterized as a service which was “no less related

to the effort to educate than services that enable[d] the child

to reach, enter, or exit the school.” Id.; see also Tokarcik v. Forest

Hills School School District, 665 F.2d 443 (3d Cir. 1981) cert.

denied sub nom Scanlon v. Tokarcik, 458 U.S. 1121, 102 S.Ct.

AON 8 IN alan a made DS eae al cay vii Ntlt hn Beate ALA Pa! ary

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3508, 73 L.Ed.2d 1383 (1982) (finding CIC a related service);

State of Hawaii Department of Education v. Katherine D., 727

F.2d 809 (9th Cir. 1983), cert. denied, —U.S.—, 105 S.Ct. 2360,

86 L.Ed.2d 260 (1985) (finding repositioning of suction tube in

child’s throat a related service). In the case at bar, provision of

the disputed services would undoubtedly enable Melissa to at-

tend school during the day. The parties admit that without this

attention, Melissa must receive only in-home instruction.

However, it does not necessarily follow that because Melissa can

attend school only with the assistance of these services, they must

be provided by the school board.

The instant case is decidedly different from the situation

presented in Tatro. The care essential for Melissa’s well-being

is complicated and requires the skill of trained health profes-

sionals. In its analysis, the Supreme Court recognized that

although meaningful access to education must be afforded han-

dicapped children, medical services which would entail great

expense are not required. In construing the “medical services”

exclusion, the Court determined that the Secretary of Educa-

tion had reasonably interpreted § 1401(17) by concluding that

Congress had intended to “spare schools from an obligation to

provide a service that might well prove unduly expensive and

beyond the range of their competence,” and upheld the limita-

tion of the “medical services” exclusion to the services of a physi-

cian or hospital which, it noted, were far more expensive than

school nursing services. The Court found, therefore, that the

administration of CIC was a permissible school nursing service.

It is clear that the Supreme Court considered the extent and

nature of the service performed in the Tatro decision. Unlike

CIC, the services required by Melissa are extensive. This is not

a simple procedure which the child may perform herself. Con-

stant monitoring is required in order to protect Melissa’s very

life. The record indicates that the medical attention required

by Melissa is beyond the competence of a school nurse. A special-

ly trained individual is required, preferably a health professional.

The Supreme Court, in Tatro, reasoned that the regulations had

permissibly interpreted § 1401(17) in providing that school

12a

nursing services did not fall within the medical services exclu-

sion. In so doing, the Court stated that Congress could well have

decided to exclude costly and complicated services. Id., 104 S.Ct.

at 3778. Indeed, the Court noted that “children with serious

medical needs are still entitled to an education. For example,

the Act specifically includes instruction in hospitals and at home

within the definition of ‘special education” ” Id. at n.11. This

dictum is in line with the Court’s earlier decision in Rowley

wherein it held that Congress did not intend to “maximize each

handicapped child’s potential.” Id., 458 U.S. at 199, 102 S.Ct.

at 3047 (holding that Act did not require provision of a sign

language interpreter for a deaf child enrolled in public school).

In light of the foregoing, the court holds that the EAHCA

does not require the defendants school district and board of

education to provide a severely physically disabled child with

constant, in-school nursing care. As recognized in the Tatro deci-

sion, the “medical services” exclusion evidences Congress’ con-

cern that schools might otherwise be subjected to excessive costs

and the burcen of health care. On the other hand, simple school

nursing services do not similarly burden the schools, and,

therefore, are permissible under § 1401(17) of the EAHCA. In

the case at bar, the services in question do not fall squarely within

the terms of the “medical services” exclusion because they need

not be performed by a physician, nor do they qualify as simple

school nursing services. See Tatro (finding the CIC a simple pro-

cedure which did not even require the services of a nurse). The

e-.tensive, therapeutic health services sought by the plaintiff on

behalf of her daughter more closely resemble the medical ser-

vices specifically excluded by § 1401(17) of the EAHCA. Even

though they do not fulfill the “physician” requirement set forth

in 34 C.F.R. 300.13(b)(4), the exclusion of the disputed services

is in keeping with its spirit. Furthermore, the Tatro decision does

not require the provision of all health services, regardless of their

magnitude, if performed by one other than a physician. The

Supreme Court held only that school nursing services of a sim-

ple nature are not excludable as therapeutic “medical services.”

For the reasons adduced above, the court grants the defen-

dants’ motion for summary judgment dismissing the plaintiff's

l3a

claim that the failure to provide the services enumerated

hereinbefore constitutes a violation of § 1401(16), (17) and (18)

of the EAHCA. Consequently, prnbatits motion for summary

judgment is denied.

E. Rehabilitation Act and § 1983 Claims.

The plaintiff's claims brought pursuant to the Rehabilitation

Act and 42 U.S.C. § 1983 must be dismissed. The EAHCA con-

stitutes her exclusive form of relief. See Smith v. Robinson, 468

U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984):

F. Pendent State Claims. |

All pendent state claims asserted by the plaintiff are dismissed.

The complaint in its entirety is dismissed.

IT IS SO ORDERED.

' The court recognizes that Robinson left open the question whether such a

claim would be precluded by the EAHCA. Id. at n. 17. However, the court

finds that plaintiff was accorded due process.

A Nie) lic Ai ar nd DO nl et ep Bie, «ali

Order of this Court Extending Time to File

Petition for Writ of Certiorari

_—*

4 Aled Pi

l4a

SUPREME COURT OF THE UNITED STATES

No. A-190

MELISSA DETSEL, BY NEXT FRIEND MARY JO DETSEL,

Applicant,

V.

BOARD OF EDUCATION OF THE AUBURN ENLARGED

CITY SCHOOL DISTRICT, ET AL.,

Respondents.

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel for

the applicant,

IT IS ORDERED that the time for filing a petition for a writ

of certiorari in the above-entitled cause be, and the same is

hereby, extended to and including October 13 , 1987.

/s) Thurgood Marshall

Associate Justice of the Supreme

Court of the United States

Dated this 3rd

day of September, 1987.

Statutory and Regulatory Provisions

Involved

15a

STATUTORY AND REGULATORY PROVISIONS

United States Code

Title 20

§ 1401 (17) Definitions.

The term “related services” means transportation, and such

developmental, corrective, and other supportive services (in-

cluding speech pathology and audiology, psychological services,

physical and occupational therapy, recreation, and medical and

counseling services, except that such medical services shall be for

diagnostic and evaluation purposes only) as may be required to

assist a handicapped child to benefit from special education, and

includes the early identification and assessment of handicapp-

ing conditions in children.

* * *

§ 1412 (5) Eligibility requirements.

The State has established (A) procedural safeguards as required

by section 1415 of this title, (B) procedures to assure that, to the

maximum extent appropriate, handicapped children, including

children in public or private institutions or other care facilities,

are educated with children who are not handicapped, and that

special classes, separate schooling, or other removal of handicap-

ped children from the regular educational environment occurs

only when the nature or severity of the handicap is such that

education in regular classes with the use of supplementary aids

and services cannot be achieved satisfactorily, and (C) procedures

to assure that testing and evaluation materials and procedures

utilized for the purposes of evaluation and placement of han-

dicapped children wil! be selected and administered so as not

to be racially or culturally discriminatory. Such materials or pro-

cedures shall be provided and administered in the child’s native

language or mode of communication, unless it clearly is not feasi-

ble to do so, and no single procedure shall be the sole criterion

for determining an appropriate educational program for a child.

16a

Code of Federal Regulations

Title 34

§ 300.13 Related services.

* * *

(a) As used in this part, the term “related services” means

transportation and such developmental, corrective, and other sup-

portive services as are required to assist a handicapped child to

benefit from special education, and includes speech pathology

and audiology, psychological services, physical and occupational

therapy, recreation, early identification and assessment of dis-

abilities in children, counseling services, and medical services for

diagnostic or evaluation purposes. The term also includes school

health services, social work services in schools, and parent counsel-

ing and training.

* * *

(b) The terms used in this definition are defined as follows:

* * *

(4) “Medical services” means services provided by a licensed

physician to determine a child’s medically related handicapp-

ing condition which results in the child’s need for special educa-

tion and related services.

* * *

(10) “School health services” means services provided by a

qualified school nurse or other qualified person.

17a

LEAsT RESTRICTIVE ENVIRONMENT

§ 300.550 General.

(a) Each State educational agency shall insure that each public

agency establishes and implements procedures which meet the

requirements of §§ 300.550-300.556.

(b) Each public agency shall insure:

(1) That to the maximum extent appropriate, handicapped

children, including children in public or private institutions or

other care facilities, are educated with children who are not han-

dicapped, and

(2) That special classes, separate schooling or other removal

of handicapped children from the regular educational environ-

ment occurs only when the nature or severity of the handicap

is such that education in regular classes with the use of sup-

plementary aids and services cannot be achieved satisfactorily.

§ 300.551 Continuum of alternative placements.

(a) Each public agency shall insure that a continuum of alter-

native placements is available to meet the needs of handicapped

children for special education and related services.

(b) The continuum required under paragraph (a) of this sec-

tion must:

(1) Include the alternative placements listed in the definition

of special education under § 300.13 of Subpart A (instruction in

regular classes, special classes, special schools, home instruction,

and instruction in hospitals and institutions), and

(2) Make provision for supplementary services (such as resource

room or itinerant instruction) to be provided in conjunction with

regular class placement.

18a

§ 300.552 Placements.

Each public agency shall insure that:

(a) Each handicapped child’s educational placement: (1) Is

determined at least annually,

(2) Is based on his or her individualized education program,

and

(3) Is as close as possible to the child’s home;

(b) The various alternative placements included under §

300.551 are available to the extent necessary to implement the

individualized education program for each handicapped child;

(c) Unless a handicapped child’s individualized education pro-

gram requires some other arrangement, the child is educated in

the school which he or she would attend if not handicapped; and

(d) In selecting the least restrictive environment, considera-

tion is given to any potential harmful effect on the child or on

the quality of services which he or she needs.

Comment. Section 300.552 includes some of the main factors

which must be considered in determining the extent to which

a handicapped child can be educated with children who are not

handicapped. The overriding rule in this section is that place-

ment decisions must be made on an individual basis. The sec-

tion also requires each agency to have various alternative

placements available in order to insure that each handicapped

child receives an education which is appropriate to his or her

individual needs.

The analysis of the regulations for Section 504 of the

Rehabilitation Act of 1973 (34 CFR Part 104—Appendix,

Paragraph 24) includes several points regarding educational

placements or handicapped children which are pertinent to this

section:

19a

1. With respect to determining proper placements, the analysis

states: “* * * it should be stressed that, where a handicapped

child is so disruptive in a regular classroom that the education

of other students is significantly impaired, the needs of the han-

dicapped child cannot be met in that environment. Therefore

regular placement would not be appropriate to his or her needs

ses*s ”

2. With respect to placing a handicapped child in an alter-

nate setting, the analysis states that among the factors to be con-

sidered in placing a child is the need to place the child as close

to home as possible. Recipients are required to take this factor

into account in making placement decisions. The parent’s right

to challenge the placement of their child extends not only to place-

ment in special classes or separate schools, but also to placement

in a distant school, particularly in a residential program. An

equally appropriate education program may exist closer to home;

and this issue may be raised by the parent under the due process

provisions of this subpart.

§ 300.553 Nonacademic settings.

In providing or arranging for the provision of nonacademic

and extra-curricular services and activities, including meals, recess

periods, and the services and activities set forth in § 300.306 of

Subpart C, each public agency shall insure that each handicap-

ped child participates with non-handicapped children in those

services and activities to the maximum extent appropriate to the

needs of that child.

Comment. Section 300.553 is taken from a new requirement

in the final regulations for Section 504 of the Rehabilitation Act

of 1973. With respect to this requirement, the analysis of the Sec-

tion 504 Regulations includes the following statement: “[A new

paragraph] specifies that handicapped children must also be pro-

vided nonacademic services in as integrated a setting as possi-

ble. This requirement is especially important for children whose

educational needs necessitate their being solely with other han-

dicapped children during most of each day. To the maximum

extent appropriate, children in residential settings are also to be

20a

provided opportunities for participation with other children.” (34

CFR Part 104—Appendix, Paragraph 24.)

§ 300.554 Children in public or private institutions.

Each State educational agency shall make arrangements with

public and private institutions (such as a memorandum of agree-

ment or special implementation procedures) as may be necessary

to insure that § 300.550 is effectively implemented.

Comment. Under section 612(5)(B) of the statute, the require-

ment to educate handicapped children with nonhandicapped

children also applies to children in public and private institu-

tions or other care facilities. Each State educational agency must

insure that each applicable agency and institution in the State

implements this requirement. Regardless of other reasons for in-

stitutional placement, no child in an institution who is capable

of education in a regular public school setting may be denied

access to an education in that setting.

§ 300.555 Technical assistance and training activities.

Each State educational agency shall carry out activities to in-

sure that teachers and administrators in all public agencies:

(a) Are fully informed about their responsibilities for im-

plementing § 300.550, and

(b) Are provided with technical assistance and training

necessary to assist them in this effort.

§ 300.556 Monitoring activities.

(a) The State educational agency shall carry out activities to

insure that § 300.550 is implemented by each public agency.

(b) If there is evidence that a public agency makes placements

that are inconsistent with § 300.550 of this subpart, the State

educational agency:

2la

(1) Shall review the public agency’s justification for its actions,

and

(2) Shall assist in planning and implementing any necessary

corrective action.